In the June 2013 issue of Fertility and Sterility, the Ethics Committee of the American Society for Reproductive Medicine published its latest opinion on the disposition of abandoned embryos (1), updated from 2004 (2). This is an important contribution to the literature on this timely issue, an issue that requires swift resolution.

At the conclusion of its 2013 article, the Committee writes:
“If a program reasonably determines…that embryos have been abandoned, the Ethics Committee concludes that the program may dispose of the embryos by removal from storage and thawing without transfer. In no case should embryos deemed abandoned be donated to other couples or be used in research” (emphasis added, 1849).

I agree with the Committee that clinics ought to be allowed to discard abandoned embryos. However, the Committee does not offer any argument to support their stronger claim that, if clinics are to do anything with abandoned embryos, they are morally permitted only to expressly discard them. (This lack of explicit argument is mirrored in their 2004 piece.) While we can reasonably expect that much discussion about this went on behind the scenes, presenting this position here—equipped with a normative prescription for clinicians about the disposition of abandoned embryos—without any explicit support, leaves the Committee’s position open to serious criticism. It is appropriate to ask the Committee for a statement of their reasons for making the strong conclusion that they do.

If the conclusion that all abandoned embryos ought to be expressly discarded were obviously true, then this lack of explicit support would not be as troublesome as it is. But, not everyone who has thought seriously about the disposition of abandoned human embryos will accept the Committee’s conclusions as obviously true (or as true at all, for that matter). This is because there are arguments in favor of at least one alternative to express discard, namely their allocation for clinical and/or scientific research purposes. This alternative disposition is not obviously immoral (although it may turn out to be immoral, upon closer examination), and thus it needs to be explicitly argued against, if we want to reject it in practice (as the Committee does).

In skeletal form, the argument could run as follows: Patients who willfully abandon their embryos forfeit their dispositional control over the abandoned embryos, as they have made themselves unavailable for participation in the process of the disposition of these embryos. They do not, however, do anything to forfeit their reproductive rights over those embryos (e.g., their right to not have children). The potential benefits of using abandoned embryos for clinical and/or scientific research are immense, including (but not limited to): (a) improving assisted human reproduction techniques; (b) expanding our understanding of human prenatal life; (c) gaining a better understanding of human genetics; and (d) generating a better understanding of certain kinds of diseases. Under current practices, some human embryos are available for research use, in cases where the gamete providers consent to their donation for such use. Yet, human embryos as a scientific and clinical research resource are scarce; it is a well-established fact that the majority of in vitro fertilization patients do not donate their surplus embryos for research purposes. Allocating genuinely abandoned embryos for these purposes would significantly extend this pool of resources, whereas expressly discarding all abandoned embryos significantly compromises our ability to achieve any and all of the potential benefits outlined above. Moreover, most (if not all) of the scientific and clinical research uses of human embryos find those embryos destroyed swiftly thereafter. And, embryos are ‘handled’ even in cases where the embryo is discarded. It is unclear, then, how it could be allowable to handle embryos in order to destroy them without the consent of the gamete providers, on one hand, and yet somehow not be allowable to handle embryos for immensely beneficial scientific or clinical research, prior to their destruction, without the consent of the gamete providers that have abandoned the embryo, on the other. Indeed, if we are allowed to do anything with abandoned embryos, perhaps we ought to allocate them for scientific and/or clinical research, prior to their destruction.

Ethics Committee Letter in Response to Member Letter on Disposition of Abandoned Embryos:

The American Society for Reproductive Medicine (ASRM) Ethics Committee gratefully acknowledges your thoughtful analysis and critique of this Committee Opinion on the disposition of abandoned embryos. You express agreement with the Committee’s conclusion that it is ethically acceptable for assisted reproductive technology programs and storage facilities to discard embryos that are deemed abandoned under specific criteria, but take exception to the Committee’s further judgment that abandoned embryos not be used for research purposes. Your critique has two parts: first, that the Committee fails to supply sufficient argument for their conclusions, and second, that on balance, such a policy deprives researchers of valuable and scarce material while producing no additional harm to the embryo or the embryo’s progenitors.

At the outset, it is important to emphasize that this Opinion presents a default rule—a proper course of conduct in the absence of a controlling program policy or express directive by the individual or couple who originally held dispositional authority over the embryo(s). To avoid application of a default rule, the Committee encourages programs to be proactive in soliciting the dispositional preferences of their patients (and other authorized decision makers), as well as publishing clear clinic-specific embryo abandonment policies that those with dispositional authority are free to accept or reject. These two mechanisms for gleaning progenitor preference—individual consent and clinic-specific policies—provide ample opportunity for affected individuals to indicate their consent to ultimately donate embryos for research purposes.

The rationale for rejecting unconsented donation of embryos for research purposes has been previously set out. In the Committee’s 2009 Opinion discussing donating spare embryos for stem cell research, it was made clear that “[i]nformed consent is a basic requirement for the ethical conduct of all human subjects research, including studies using human embryos” (1). Under an informed consent rubric, those who donate embryos to research are entitled to information that could be material to their decision making, including the risks and benefits of donation, the purpose and nature of the research, and whether the research is expected to have commercial value. Further, increasingly, gametic and embryonic material used in research may yield population or individually identifying genetic information that could be traced to a specific donor (2). For these and other reasons, the Committee deemed use of embryos without a donor’s consent to constitute unethical, and possibly illegal, conduct.

Finally, the Committee believes your utilitarian-based argument that handling unconsented embryos for research prior to their destruction works no greater harm than immediate discard and produces a net benefit that cannot be sustained in law or ethics. Tortious harms to persons and property are recognized in law as battery and conversion, respectively. Both torts arise from an individual’s unconsented touching of another’s person or property, leaving any researcher who fails to secure consent potentially susceptible to legal liability. Moreover, deploying embryos for research without consent diminishes the autonomy patients enjoy in making decisions about their bodies, including decisions about the disposition of excised reproductive material. Finally, research that proceeds without consent jeopardizes the public’s confidence in scientific research in general and respect for the integrity of embryonic research in particular (3).

In summary, while the Committee supports the discard of abandoned embryos—defined by the passage of time, the lack of contact with the progenitors, and the absence of disposition-specific instructions—the Committee does not support directing abandoned embryos to research either before or as a method of producing their discard. The Committee believes embryonic research would be diminished, not enhanced, by such activity.

Ethics Committee of the American Society for Reproductive Medicine
Birmingham, Alabama

3. Ethics Committee of the American Society for Reproductive Medicine. Informed consent and the use of gametes and embryos for research. Fertil Steril 2004;82:S251-52.

Ryan Tonkens

The ECASRM (2013) position statement on the disposition of abandoned embryos states that “If a program reasonably determines […] that embryos have been abandoned, […] the program may dispose of the embryos by removal from storage and thawing without transfer. In no case should embryos deemed abandoned be donated to other couples or be used in research”.

In their published response to my critique of their recommendation, ECASRM (2014) offered three general reasons in support of their conclusion that all abandoned embryos ought to be expressly destroyed, and against the allocation of abandoned embryos for research purposes, which have to do with (1) informed consent, (2) patient autonomy, and (3) public response.

As discussed below, these reasons are unconvincing.

(1) It is true that the allocation of abandoned embryos would be done in
the absence of patient consent: embryo abandoners do not offer their consent for the disposition of their embryos, since they are not available for consultation. The committee is concerned about this absence of consent for two reasons, namely (i) that the patient is entitled to information about the use of their embryos and the genetic information they contain, and (ii) “unconsented touching of another’s person or property”—in this case their embryos made up of their reproductive material—violates established tort law (as either battery or
conversion). Implicit in this argument are the ideas that the use of embryos for (all kinds of) research would breach these tenets, and that the express disposal of embryos does not constitute any such breach.

However, the destruction of abandoned embryos is no different from the destruction of abandoned embryos after they have been use for research purposes, with respect to informed consent. In both cases, the abandoning patient would not consent to the use of their embryos. By the committee’s logic, abandoned embryos ought not to be touched at all, which would imply their not being removed from storage, thawed and discarded, something ECASRM recommends. The handling of embryos attached to the procedure of destroying them would also constitute “unconsented touching of another’s person or property”.
Moreover, one way to ‘inform’ patients is to provide clear stipulations about the action(s) that will be taken in the event of later abandonment, during the initial consultation and consent process. Indeed, as ECASRM recognizes, “Programs should create and enforce written policies on the designation, retention, and disposal of abandoned embryos” (2013). Furthermore, it is not true that informed consent is always required in order to maintain ethical standards in research, as some research includes elements of deliberate deception of participants, and some research does not require consent for all aspects of the protocol, etc. That research use of abandoned embryos could yield immense benefits, and since the patient is not present to
consent to any handling of their abandoned embryos, there may be a special case to be made here as well.

(2) The second reason offered by the committee against allocating
abandoned embryos for research use has to do with the diminished autonomy of the patient: “deploying embryos for research without consent diminishes the autonomy patients enjoy in making decisions about their bodies, including decisions about the disposition of excised reproductive material”. This reason does not have any force. To repeat, any handling of abandoned embryos would be to ‘violate’ patient autonomy in this sense. Thus, if the concern about patient autonomy is legitimate, then abandoned embryos ought not to be removed from storage at all, for any reason. Moreover, the extent to which the
abandoning patient’s autonomy ought to be respected, all the way, may be mitigated through the act of willful abandonment itself, where the patient has exercised their autonomy in a way that now requires
someone else to make decisions for them about the handling of the surplus embryos in storage.

(3) Lastly, the committee is concerned about public confidence: “research that proceeds without consent jeopardizes the public’s
confidence in scientific research in general and respect for the integrity of embryonic research in particular”. Some of the points already made above speak against this reason, including the fact that not all ethical research involving humans always requires explicit, prior consent of the participant. And, patients could be made aware of this possible
consequence of wilfully abandoning their embryos, during the initial
consultation and consent phase of treatment.

In addition, even if the public could lose confidence, it does not mean
that they would have good reason to do so; the argument presented here does not give clinics the authority to begin to allocate other kinds of embryos, without consent, beyond those that have been willfully abandoned. A final point to make is that this worry about public confidence is not a moral reason supporting the express destruction of abandoned embryos, or against the allocation of abandoned embryos for certain kinds of research use, but rather a political one, and ought to be recognized as such.

If the ECASRM wants to continue to recommend the express destruction of abandoned embryos, then they need to provide good moral reason for doing so. So far they have not.

New Discussion Features!

NEW! Open access free discussion forums on EVERY article in Fertility and Sterility! Just go to the issue and click on article title. You will be able to submit comments questions or share your thoughts on the paper-- Speak your mind!